43 N.Y.S. 225 | N.Y. App. Div. | 1897
This is an action of negligence in which the plaintiff was non-suited. It grows out of a collision which occurred on the 2d day of September, 1892, on the highway known as Yonkers avenue, connecting the cities of Yonkers and Mount Vernon, between an electric trolley car belonging to the defendant and a two-horse truck belonging to the plaintiff, which was "employed at the time as a stage for the conveyance of passengers. A contractor was engaged in repairing Yonkers avenue, in sections of 400 feet at a time, so that any particular section which he was at work upon was rendered impassable for teams except along the track of the defendant’s rail
' The learned trial judge dismissed the complaint on the ground that the plaintiff’s driver was guilty of contributory negligence “ in not ascertaining whether he could pass over that 400 feet before a car would come along which had a right to pass over independent of bind” In so doing the court assumed, as matter of law, that if there was an approaching car in sight, no matter how far off, it was the duty of the driver of the stage to keep off the blockaded section of the avenue till the car had come over it. We are of the opinion that this view was erroneous. The driver testified that the collision occurred at about the middle of the blockaded section, and that he saw the car 600 or 800 feet ahead. These statements authorize the inference that the stage was upon the portion of the road which was undergoing repair before the. driver saw the car at all, and that the motorman would have perceived the presence of the stage there if he had exercised reasonable care to keep a good lookout, and could readily have avoided running down the plaintiffs team. It is not necessary for the purposes of this appeal to determine what would have been the respective obligations of the plain
The judgment should be reversed and a now trial granted, with, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to- abide the> event. ■